Allison v. Chicago, St. Paul, Minneapolis, & Omaha Railway Co.

MoCOY, J.

[1,2] This is an appeal, by the defendant, from a judgment awarding damages against it for.the destruction of plaintiff’s automobile on a railway crossing in Minnehaha county. The accident occurred at about 9:45 o’clock in the evening- of July 14, 1913, and, at the time of the accident, the automobile was standing across the main track of defendant’s railway on a public highway crossing and at a point about 30 to 40 feet west of defendant’s depot platform, in the town of Ellis. Plaintiff claims that the collision resulted from the negligence of the engineer in not stopping the locomotive before -it reached the automobile, while defendant claims the accident resulted from -the negligence of the man in charge of the automobile. At the time *337 in question, the automobile was ’driven upon defendant’s track by plaintiff’s son, and as he was moving to the south and in the act of crossing tihe track quite slowly the engine of the auto ceased to' work, and, the son failing to make said auto engine operate, the auto 'remained stalled upon the track in front of the approaching passenger train, composed of an engine and five cars. It appears that -the son was not negligent in the handling of the automobile. The only material question for consideration is whether or not the evidence is sufficient to- sustain the verdict in favor of plaintiff, finding that defendant was guilty of negligence in running said train into said automobile. As we view the case, there was a sharp conflict in the testimony bearing upon the facts upon which the negligence is claimed to be based. One of the' material questions was the distance away of the approaching train at the time the auto stopped across the track. The son testified that when the auto stopped on the track he looked and saw the train coming from the west — that the train was then some distance west of the whistling" post, which post is 1,320 feet west of the crossing on which the auto' stopped. A bystander, who was on the depot platform, saw the train approaching before he saw the auto come on the track and stop; this witness testified that the train was from 40 to 60 yards west of the whistling post at the time the auto came upon the track. Defendant’s - engineer operating the engine of the train testified that he first saw the automobile coming from the north; that he got a glimpse of it as it came on the track; that he was about 690 feet west of the public highway crossing- when he first saw the auto; that he then, immediately applied the emergency brake, reversed the engine, and sounded the whistle. If the testimony offered by plaintiff was true that the train was 40 to 60 yards west of the whistling post when the auto stopped, and the testimony of the engineer is true that he saw the auto before it went upon the track, and as it went on the track, be had at least 1,400 feet within which to stop the train. There was testimony tending to show that a 1,500 candle power electric headlight, such as the engine in question was equipped with, will light up the track about 2,000 feet in front of the engine, and that an object, *338 like the body of a man or dog, lying on the track could 'be seen plainly 8oo feet, and that a train, such as the one in question, can be brought to a stop within 6oo feet. It also appears that the train in question 'had reduced speed to about 25 miles an hour at the whistling post. There was testimony showing that •when the engine struck the auto- it threw it off the track; that one of the coaches' caught the top of the auto1 and carried it about 50 feet to a point nearly opposite the station; that the engine ran down past the station. It also appears that the public highway crossing where this accident occurred is on the main street in the town of Ellis. The fact that the train stopped in front of the station approximately where it would have stopped, had the auto' .not been on the crossing, indicates that but little attention was paid to the auto by the engineer. We are of the view that the question of negligence on the part of defendant was properly submitted to- the j-ury, and that there was evidence sufficient to sustain the verdict in favor of plaintiff. The agents and servants of railway companies in charge of engines and trains are held and duty bound to a higher degree of care and watchfulness when approaching the crossing of a public street in a town, village, or city, where persons and vehicles are presumed to be more numerous than on public crossings in country districts more itfifld - populated. If the engineer in question saw this automobile go upon- and stop' across the track when the train engine was 1,400 feet distant, a.s some of the testimony tended to show, the jury was justified in saying that defendant’s engineer was negligent in running into- the. auto' of plaintiff.

[3, 4] Plaintiff offered in evidence the deposition of one Bahr, which was taken upon notice after the service of summons upon defendant but before the service of the complaint and answer. Defendant appeared specially at the taking of said deposition and objected to; the taking thereof, on the ground that there was nothing tO' show what issues were or would be involved in the action, and that section 510, Code of Civil Procedure, is unconstitutional and void, and that the effect thereof would amount to' the taking of defendant’s property without due pro1-cess of law. Counsel for defendant thereafter took part in the taking of said deposition and cross-examined said witness. Before the trial, defendant made and filed exceptionis and objections to *339 said depositan, and on the trial objected, on the same grounds interposed, to the offer -of said -deposition in evidence. To the overruling of such objections, the -defendant excepted and now urges such ruling as error. We are -of- the view that defendant’s contention is not -tenable. Section 510, Code of Civil Procedure, provides that ‘'’Either -party may commence taking testimony by depositions at any time after service upon the defendants.” We are of the view that this section in no possible manner could amount to the taking of' defendant’s property without -due process of law; this- section of statute law relates solely to- a matter of practice and- fixes a time after which testimony may be taken by deposition. Similar provision is found in the statutes of many s-tat-es. We do- not say but what either party, plaintiff or defendant, might be prejudiced by the taking of a, deposition prior to the making up of the issues; but there is nothing in the circumstances of this case, so- far as- appears from- the record, that could by any possibility have -misled -or prejudiced, defendant by reason of the deposition in question having been taken prior to- the making up- or joining- of the issues. Section 4101, Wisconsin Ann. Stat., provides that depositions may be taken at any time after the -commencement of the ’action. In Sleep v. Heymann, 57 Wis. 495 , 16 N. W. 17 , under this- statute, the Supreme Court o-l Wisconsin held that depositions might be taken before the issues were joined. Doyle v. Wiley, 15 Ill. 576 ; Harding v. Am. Glucose Co., 182 Ill. 551 , 55 N. E. 577 , 64 L. R. A. 738, 74 Am. St. Rep. 189 . We are also- of the view that if there was any irregularity in the taking of said deposition, -before the joining of -the issues, the same was waived- by -defendant’s taking part in and eross-examinating the witness, notwithstanding defendant made the -objection to the taking of the -deposition prior to- the commencement thereof. Miller v. McDonald, 13 Wis. 673 ; Jones, Ev. §§ 671-689; 6 Am. & Eng. Ency. PI. & Pr. p. 483. The “service upon defendants” mentioned in section 510 means service of process by which defendants are -brought into- court.

Appellant urges many other assignments of error, all of which hav-e been carefully -examined, and we are of the opinion that no- prejudicial -error exists therein.

The judgment and order appeal from are affirmed.